Updated: Jan 7
Understanding the Different Types of Divorce
Divorce can be tedious, costly, and an emotional roller coaster. When a couple decides to end their marriage, choosing next steps is critical to how the matter is best handled. Contrary to common assumptions, divorce is not a one-size-fits-all process. There are different types of divorce—and it's essential to understand what each one entails to help make the decision making process regarding a dissolution of marriage as seamless as possible.
1. Fault vs. No-Fault Divorce
To end a marriage, the court must find that there is no chance that the marriage can be saved. The parties can agree on this or offer proof to the court regarding that issue. When it comes to no-fault divorce, the petitioner (the person who files the lawsuit) can cite the reason for the divorce as 'irreconcilable differences' (used in Illinois) or 'irretrievably broken' (used in Missouri). No proof is needed for the breakdown in marriage.
Fault-based divorce is when at least one party states a reason for wanting to end the marriage. In Missouri, fault can be a part of the determination of how property—if any—is divided between the parties. If the respondent (the person who is answering the law suit) denies that the marriage is irretrievably broken, then the court must find one or more of the following facts:
1) That the respondent has committed adultery and the petitioner finds it intolerable to live with the respondent;
2) That the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent;
3) That the respondent has abandoned the petitioner for a continuous period of at least six months preceding the presentation of the petition;
4) That the parties to the marriage have lived separate and apart by mutual consent for a continuous period of twelve months immediately preceding the filing of the petition;
5) That the parties to the marriage have lived separate and apart for a continuous period of at least twenty-four months preceding the filing of the petition
In Illinois, fault-based divorce was abolished in 2016. Consequently, spouses can no longer cite any fault grounds as the reason for a divorce. However, fault may be considered when determining child custody and visitation. While Illinois law specifically prohibits judges from analyzing fault when dividing property in a divorce, a judge may evaluate whether a spouse dissipated marital assets during the marriage i.e. while dating someone, that spouse used income from the marriage to pay for rooms, food, travel, etc.
2. Contested vs. Uncontested Divorce
An uncontested divorce means that the two have agreed to work together on all the relevant issues---child support, custody, maintenance, and property division—so there's no conflict. Such a divorce type may require no attorney, take less time, cost less, and there are no delays for the settlement agreement.
In Missouri, the divorce petition must be on file for thirty (30) days before a judge can grant a divorce. However, in an uncontested divorce, the parties can obtain a divorce AND be excused from all court appearances by submitting well-drafted documents on which the parties agree for the judge's approval. If the documents are not one-sided, biased, poorly drafted (fail to include essential provisions), or have other flaws, the judge usually grants the divorce without the need for a hearing or a court appearance.
Illinois does not impose a 30 day “cooling down” period. Moreover, most circuits have made the process for submitting well-drafted documents that comply with the law an easy. Like in Missouri, if the documents are not one-sided, biased, poorly drafted (fail to include essential provisions), or have other flaws, the judge usually grants the divorce without the need for a hearing or a court appearance.
Contested divorces involve a lot of work. It usually means the parties don't agree on something, so it's important to isolate the disagreement. For example, is the disagreement because one party does not want a divorce or is the disagreement over how property and custody will be divided? It's the most expensive type of divorce since there might be the need for several hearings, trials, lengthy discovery processes, and a delayed settlement agreement. In most cases, a contested divorce leaves both parties emotionally—and financially—drained.
3. Default Divorce
A default divorce is granted when one spouse doesn't comply with the rules given by the court. Usually, after being served with the petition, one party fails or refuses to attend the trial or hearing and a default divorce is granted. It has the same force and effect of a divorce where both parties participate; however, only one side is heard. If the court has jurisdiction over children and property, those things can be decided by a judge based solely on the information from one party if one party fails or refuses to participate.
4. Collaborative Divorce
The parties in a collaborative divorce have to agree on each aspect of the contract. They hire a lawyer who uses non-adversarial techniques to resolve any issues. The main goal of this divorce is to attain a win-win solution that suits both parties while avoiding litigation. This is a relatively new form of divorce that is gaining traction since the terms are worked out in advance of filing the petition and the agreement can be reached at the pace of both parties. This is particularly good when one party is not immediately ready to divorce, where the parties have a large number of assets that need to be divided, when the parties have several different issues to consider, or when the parties want to avoid the exposure associated a trial.